MATTER OF FIORE v. BD. OF EDUC. RET. SYS. OF THE CITY OF NEW YORK


48 A.D.2d 850 (1975)

In the Matter of Alphonse Fiore, Respondent, v. Board of Education Retirement System of the City of New York et al., Appellants

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 9, 1975


Judgment reversed, on the law, without costs, determination confirmed, and petition dismissed on the merits.

It appears that petitioner's actual application in this proceeding is a second renewal of an application he made on November 21, 1967 for accident retirement disability. That application was denied on May 14, 1968. The instant application, dated September 15, 1972, is, in effect, a further request to the Retirement Board to reconsider its May 14, 1968 denial of such benefits. The determination of October 3, 1972 is, in actuality, the second rejection by the Retirement Board of its denial, on May 14, 1968, of those benefits to petitioner. Under the Retirement Board's rules there is no provision for a "service-connected disability pension" as such, the pension sought by the petition and granted by the judgment under review. The annulment of the Retirement Board's determination of October 3, 1972 is an effective annulment of its May 14, 1968 determination. An application to reconsider an administrative board's determination (at bar, the Retirement Board's determination of May 14, 1968) does not extend, by the making and rejection thereof, the four-month statutory period under CPLR 217 within which to seek a review of the determination. This article 78 proceeding is barred by the limitation period of CPLR 217. (Matter of Davis v Kingsbury, 30 A.D.2d 944, 945, affd 27 N.Y.2d 567; Matter of Karrafa v Simon, 14 A.D.2d 978, 979; Matter of Williamson v Fermoile, 31 A.D.2d 438). Moreover, even if this proceeding had been timely instituted, the record discloses sufficient evidence for the Retirement Board to have properly found that petitioner's heart attack on January 10, 1966 was not the result of an accident which occurred on that date and that petitioner had suffered from cardiac illness prior thereto. Where there is conflicting evidence as to whether a claimant's injuries should be considered as having resulted from an accident caused by his employment or because of a prior illness, the determination of the administrative board or public officer statutorily authorized to determine that question may not be interfered with by the court, unless that decision is arbitrary or capricious (Matter of Croshier v Levitt, 5 N.Y.2d 259, 264-265; Matter of Alexander v New York City Employees' Retirement System, 43 A.D.2d 826, affd 36 N.Y.2d 671; Matter of McGovern v Lowery, 39 A.D.2d 518, affd 32 N.Y.2d 954; Matter of Manza v Malcolm, 44 A.D.2d 794; Matter of Thomasson v Valentine, 263 App Div 334, 335). Special Term's finding that the Retirement Board's failure to follow the determination of the Workmen's Compensation Board, which held that petitioner's heart attack was the result of an injury sustained in his employment on January 10, 1966, was an arbitrary decision by the Retirement Board is contrary to controlling authority (cf. Matter of Croshier v Levitt, supra; Matter of Alexander v New York City Employees' Retirement System, supra, 43 A.D.2d 826, revg NYLJ, Feb. 5, 1973, p 2, col 2). We note that at bar, Special Term relied upon the above decision in Alexander in New York County, prior to the reversal thereof, in support of its conclusion. Further, Special Term concluded that the Retirement Board acted arbitrarily because it relied upon the decision of the physicians employed in its Medical Board. The controlling authorities hold that it is appropriate for an administrative board to accept the recommendation of its medical board in situations such as these (Matter of McGovern v Lowery, 39 A.D.2d 518, affd 32 N.Y.2d 954, supra; Matter of Alexander v New York City Employees' Retirement System, supra; Matter of Manza v Malcolm, 44 A.D.2d 794, supra, revg NYLJ, Feb. 20, 1973, p 2, col 2). Special Term at bar relied on the above decision in Manza, prior to the reversal thereof.


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